A L BROWNE Vs. HAPEARCE

JUDGEMENT

(1.) Madam Pearce, a Milliner of Agra, sued Assistant. Surgeon Browne, a member of the Indian Medical Department, for a sum of about Rs. 40. There are no particulars before us to show us the date or the actual amount, but at all events at the time when the judgment-creditor was seeking to recover the money by attachment the sum was then Rs. 46-6-0.

(2.) An application was made to the Small Cause Court Judge asking for the attachment of part of the pay of this Assistant Surgeon. That attachment issued, and when the papers arrived at head-quarters the authorities there refused to recognize the order of the Court, contending that the pay of the Assistant Surgeon was not attachable. Certain correspondence followed, and eventually the Government pleader was instructed to lodge objections to the attachment of the judgment-debtor's pay. Those objections were dated 21 October 1924, and seemed to treat the matter on the basis that this Assistant Surgeon was subject to the provisions of the Indian Army Act. On argument, the Small Cause Court seems to have been to some extent embarrassed by want of authorities and eventually the Judge decided to disallow the objection. Thereupon the matter has come up here in revision.

(3.) The point really is a very short one, and we may as well treat it under both heads of the English authorities and the Indian, because Mr. Dillon whilst putting forward the view that the Assistant Surgeon is in fact recruited under British conditions agrees that it is possible he might have been recruited in India. In effect the position is precisely the same. An Assistant Surgeon is a Warrant Officer and is so described in Army Regns. Vol. 2, p. 132. Whatever his grade, be it 1st, 2nd, 3rd, or 4 Class, he is a Warrant Officer. Whether in the British or Indian Army he is alike a Warrant Officer. As regards the British Army he undoubtedly comes under the generic title of "soldier" as distinguished from "officer", the latter word being used as applicable only to those who hold His Majesty's commission. A reference to the Army Act of 1881(44 & 45, Vict. Ch. 58), Section 190, Clause (6), shows that the expression soldier does not include an Officer, as defined by this Act, but, with the modifications in this Act contained in relation to Warrant Officers... does include a Warrant Officer not having an Honorary Commission.